Younger v Westpac Banking Corporation [2016] NSWSC 401

Younger v Westpac Banking Corporation [2016] NSWSC 401

The plaintiff was substantially successful on the notice of motion concerning inadequate discovery, and there is no reason for the court to 'otherwise order' regarding costs. Therefore, the plaintiff is entitled to the costs of the notice of motion. For costs thrown away by vacation of the hearing date, given the discovery was inadequate and the ongoing uncertainty about future discovery, the fairest outcome is to make plaintiff's costs of vacation costs in the cause, ensuring the appropriate party bears wasted costs depending on the final result.

Parties
Plaintiff: Neil Younger; Defendant: Westpac Banking Corporation; Defendant: Asgard Wealth Solutions Ltd
Jurisdiction
Australia
Judgment Date
07 April 2016
Procedural Posture
Civil / Interlocutory (costs Application After Notice of Motion Re Discovery)
Outcome
Orders for costs made in favour of the plaintiff in respect of the Notice of Motion; costs thrown away by vacation of final hearing date to be plaintiff's costs in the cause; matter adjourned for directions; liberty to restore granted.
Legal Topics
Costs, Discovery, Interlocutory Proceedings
Civil Procedure Costs Discovery Interlocutory Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Neil Younger

Plaintiff

Westpac Banking Corporation

Defendant

Asgard Wealth Solutions Ltd

Defendant

Procedural Posture

Civil / Interlocutory (costs Application After Notice of Motion Re Discovery)

Legal Issues

  1. 1 Whether the plaintiff is entitled to costs of the notice of motion regarding discovery inadequacy
  2. 2 Whether the plaintiff is entitled to costs thrown away due to vacation of the hearing date

Ratio Decidendi

The plaintiff was substantially successful on the notice of motion concerning inadequate discovery, and there is no reason for the court to 'otherwise order' regarding costs. Therefore, the plaintiff is entitled to the costs of the notice of motion. For costs thrown away by vacation of the hearing date, given the discovery was inadequate and the ongoing uncertainty about future discovery, the fairest outcome is to make plaintiff's costs of vacation costs in the cause, ensuring the appropriate party bears wasted costs depending on the final result.

Court Disposition

Orders for costs made in favour of the plaintiff in respect of the Notice of Motion; costs thrown away by vacation of final hearing date to be plaintiff's costs in the cause; matter adjourned for directions; liberty to restore granted.

Orders

  • Order the defendant to pay the plaintiff's costs of the notice of motion filed 31 March 2016.
  • Order that the costs thrown away by reason of the vacation of the final hearing date of 11 April 2016 be the plaintiff's costs in the cause.